Saturday, April 12, 2008

When Editorial Uses of Photos Require Model Releases

Recently, I've noticed a big increase of discussions on photo forums involving questions of whether model releases are necessary for certain types of shooting conditions. What struck me is that so many of these questions were about the need for releases for editorial uses, a form that normally doesn't require model releases anyway.

Here are some examples that came up in discussions, all of which share a common theme.

You're a wedding photographer and you're shooting the bride and groom during a ceremony at their home.

You're an equestrian photographer on a "farm call" to photograph a horse at the owner's stable.

You're an art photographer and you're at an artist's studio to shoot a few pictures of his latest sculpture that he will send to his agent, who will then send them to magazines for a press release.

You're a portrait photographer and own a studio at the local mall. A client comes in to have pictures taken of him so he can distribute them to potential modeling agencies.

You're a press photographer, and develop a special relationship with a congressional candidate, who invites you to the family estate to photograph the clan for a memoir they intend to publish about the personal tolls that political life can have on a family.

Though there are contracts associated with each of these assignments, none of them include model releases by the subject for the photographer. Here's the question: can you license any of these photos for EDITORIAL use to a newspaper who is doing a story on the individual who is the subject of any of these given photos?

Most people would say no, and would guess that it's because of the lack of model releases. True, but the more important (and harder) question to ask is: why? After all, as you may know, model releases aren't usually necessary for editorial uses of photos, and you can't get more "editorial" than a newspaper story. So, what makes these cases above so different that model releases would be required for an editorial publication?

Here's where almost everyone will now guess wrong: they'll say that the photography was done on private property (or "of" private property).

That's not it.

What matters are the laws governing "personal privacy," and the fact that the property itself may be private and/or personal is actually not a factor here. Privacy laws protect people's rights in ways that transcend issues of "property" entirely. This may include conditions where 1) people waive their privacy rights even on their own property, and 2) people preserve their privacy rights on public property. So, the first thing you need to do is dispense with the notion that "property" has anything to do with privacy--at least, insofar as the publication of photos in editorial contexts is concerned.

The other thing you need to immediately forget are the high-profile cases concerning "violations of privacy," such as breaking and entering, intruding on personal space, planting hidden cameras in people's homes or in the workplace, or using brute force methods to get pictures. In short, stop thinking about just those cases that involve "aggression." While such aggressive techniques do violate privacy laws, these are obvious. What's more interesting--and which is far more common--is where photographers can violate privacy laws in very passive ways, even including situations where the photographer has written permission from the photo subject to photograph him. The cases listed at the top of this article are perfect examples.

Here's how you need to think about privacy laws from the top down:

Does there exist "a reasonable expectation that one could be photographed by the general public without the person's knowledge"?

What is the relationship between the photographer and the subject?

How much "orchestration" was necessary in order to capture the photo?

Each of these requires discussion, so let's address them individually. After that, I'll tie them all together to present a real-world scenario that everyone can identify with.

The first item is the most important because it lies at that pivotal dividing line between personal rights and that of the First Amendment (which affects freedom of the press). That dividing line means that people are entitled to "privacy" when they're in certain conditions, but they waive their rights in other conditions. The easy cases we all know about are: when you are in public, you can reasonably expect that you could be photographed without your knowledge. When at home, you can expect that your privacy is protected from such photography. Easy enough, but it gets complicated when you introduce other conditions.

For example, each item in the following list is a private property: an amusement park, a bar, a zoo, your swimming club, your golf course, your church. In each of these cases, the general public can come, and they often have cameras with them. Hence, everyone on the premises has waived certain rights of privacy insofar as their photos being taken by others, even though the property is "private." Don't necessarily take this as a universal truth though; there could be specific venues where photography is prohibited, thereby changing one's "expectations" of being photographed. Still, once again, don't take that as a given either. Just because a venue may say there are prohibitions, doesn't necessarily mean the expectation goes away. It's not enough to just see signs that say "no photography," or a warning on the back of a ticket stub that says you can't take pictures. And you certainly never rely on your opinion that people shouldn't be taking pictures. If the rule is not enforced, and you still see people shooting away without intervention, the expectation of being photographed still exists.

True, one could argue this case to a judge, and one may get some leeway because of this, but the judge will weigh other factors as well. He's going to be as objective as possible by looking at the behaviors of others in the environment and assessing what's actually going on. If many people are conspicuously taking pictures, whether they're allowed to or not, this will be considered. On the other hand, if security personnel are stopping people from taking pictures, then it can be argued that the expectation of being photographed is reduced. Between these two extremes lies the reality of the situation.

Consider a celebrity who argues that he only showed up at the event because he was promised that no photos would be taken. If it was clear that the ban wasn't enforced, and there were people taking pictures everywhere, and he had an opportunity to leave before being photographed, he may have a hard time convincing the judge that his privacy was violated by the photographers. Separately, he may have a claim against the venue for failing to enforce the photo ban, but the judge will consider that the conditions at the event were obvious and the celebrity had an opportunity to leave. By staying anyway, he subjected himself to a "reasonable expectation that he would be photographed." If you're one of the lucky photographers that got a photo of him, and that photo ended up in the newspaper, you haven't violated his privacy. That's editorial publication, and the photo doesn't need a release.

So, the fact that you're on private property is inconsequential. Indeed, there are cases where you can be in a public place and still have your privacy rights protected. How? This gets into the second point above: what is the relationship between the photographer and the subject?

To illustrate, consider the scenarios listed at the top of this article. In each case, the people being photographed asked the photographer to do so because they wanted the pictures for themselves. Even if they are for publication in the general press, that part is irrelevant insofar as privacy rights are concerned. It is the direct invitation to the photographer by the subject to shoot a specific thing which implies that the subject has not waived his privacy rights. Thus, the photographer's use of any of those photos requires consent from the subject (in the form of a model release). Yes, including for editorial publication.

Note that this does not affect copyright status--the subject is not suddenly the owner of the photos, nor does the relationship imply a work-for-hire scenario. It's simply a matter of privacy, and the scenario involved means that that no one has waived any rights.

Once again, note that "private property" has nothing to do with anything here. Whether the photo session was on public or private property, the photos taken by the photographer in question are restricted due to the circumstances involved.

Back to the "relationship" factor between the photographer and the subject: The alert reader will note that, if the photo session is on public land, one cannot necessarily assert privacy rights to others. Not every person with a camera is "the photographer" with whom the subject has a relationship. Consider a couple that hires a wedding photographer to shoot their ceremony, and that ceremony happens to be in a public park. Only the hired photographer is bound by the agreement made by the couple, so the photographer has no rights to license those photos. However, because the ceremony is in the public, other people who have cameras, such others at the wedding or uninvited bystanders, can each shoot all they like, and license those photos to others for editorial publication or any other uses that do not require model releases.

The special relationship between the photographer and the person that hired him has been upheld in court cases, especially those involving weddings. Judges' rulings have maintained that people's expectations of the service that the photographer is providing is one in which they can reasonably assume that these photos are for their personal uses.

To illustrate the strength of this relationship's effect on the need for a release, consider the scenarios I described involving an artist and his sculpture, or the owner's horse. Normally, only photos of people require model releases because animals and objects don't have privacy or publicity rights. But, there still may be restrictions on the use of these images because of the privacy laws involved and the "relationship between the owner and the photographer." The fact that the photographer was invited for the purpose of providing a service puts limitations on all the photos taken during the session.

What's further interesting is that the strength of these cases have been decided on the weight of another factor involved, which leads us to the third item on the list: to what degree was a photo "orchestrated."

When it comes to orchestration, the idea is that the more involved the photographer and subject are in coordinating how photos are taken, the more "invasive" the photographer is on the privacy rights of the subject. Remember the first rule, where a subject waives his rights of privacy if he can be photographed without his knowledge? Clearly, if the person is unaware he's being photographed, his actions are of on his own free will, and anyone that witnesses such acts in a public space is entitled to publish photos of them in an editorial context. But, if the subject is directed in a controlled situation, he is no longer acting on his own accord--he's doing what he's told to do--so photos of him may not necessarily be representative of him. Even if he's agreeing to be photographed, he still maintains some rights of privacy.

Now, understand that this is purely academic right now, and real-world situations may present very gray areas. For example, just because you ask someone to pose for a picture doesn't necessarily mean that they are now "being directed." And though you may still be safe if you ask them to wave, or stand next to a building, or even spend considerable time with them in a casual or candid manner, you can see that each of these progressive acts leads you closer to that gray area; the point at which you cross into the "privacy" zone is rarely clear and has to be evaluated on a case-by-case basis.

So now, let's pull together all three of the checklist items, and consider a case that involves them all: you're hired by a restaurant to photograph the dining room with people eating. Here's a complicated situation because we have many people involved, a variety of conditions, and possibly some "direction" by you to the patrons. So, let's piece it all together.

First, unlike the restaurant owner, the diners have no relationship to you at all, so the first question remains the most important: "is there a reasonable expectation that they could be photographed without their knowledge?" As discussed before, one has to do an on-site assessment: Are others taking pictures? Are you conspicuous with your camera? Has the restaurant owner told the clients (verbally or with a sign) that they might be photographed? Even subtle things like whether it's a quiet, intimate, "private" sort of venue, or whether it's a loud arena-type of pizza parlor, can imply a different perception on whether there's a "reasonable expectation of being photographed."

Assuming there is such an expectation, then the clients have waived their privacy rights, and you can license the photos (without releases) to a client who may publish them in an editorial context.

Next is the question of "orchestration." Are you simply photographing the room, or are you having people pose for you? Is it a simple shot, or are you directing a man and a woman (who don't know each other) to clink their glasses together and gaze into the camera? Are you adjusting the smile? Fixing hair? The more you get into these actions, the more likely it is that your orchestration begins to threaten their rights of privacy if these photos were published without a release, even in editorial contexts. You haven't violated anything by taking pictures; it's the publication of them (or the licensing of them to someone else who can publish them) that could be.

Assuming there is no orchestration, and that people were aware that they were being photographed, you can license these photos for editorial purposes to any buyer.

Oh, Wait! Had you forgotten that it was the restaurant owner that hired you? He's the one that wants to use the photos. Is he aware of all these issues? Probably not at all. So, as the hired photographer, you have to be aware of them so you don't get your client into trouble when he publishes the pictures.

You might think that it'd be easier if you just had everyone sign releases. Well, again, in the real-world, that could cause more trouble than it's worth. Diners don't want to be bothered with that as a group, so you would really only want to do that with people with whom you've given direction, or who may appear to be "advocates or sponsors" of the restaurant. Why's that? Because the owner probably wants to use these photos for promotional purposes, and for that, he would need model releases from anyone that could appear to be "advocates or sponsors." Note that model releases are not required from people who are simply part of a scene, even if they are recognizable, and even if the use is commercial (advertising or brochures). What triggers the need for a release in a commercial use is if the people appear to be "advocates or sponsors." So, if one of the pictures you took is of a couple clinking their glasses looking directly into the lens, and the picture is clearly on them, they would have to sign a release for the restaurant to use their photos. On the other hand, a wide-shot photo of the entire room with everyone eating at their tables (not looking at the camera), none of these people would need to sign a release. This applies to both the commercial and editorial uses by either you or the restaurant owner.

Got all that? Well, we're not quite done yet. There's one more important factor in the "relationship" section that hasn't yet been brought up: one in which the photographer asks the subject to participate in a photo shoot, rather than the other way around. In each of the scenarios discussed so far, the subject asked the photographer to be photographed. But, what if you're the one to call the farm and ask owner if you can bring a group of photographers (perhaps students) to do a photo session of the owner and his horses? This is a subtle but important difference that could change the entire landscape of whether releases would be required for editorial uses.

Another way to look at this is to ask, "what is the purpose of those photos?" If the subject hired the photographer, he knows what the photos are for, and his expectations about how they are used have been set. If the pictures were to later show up in the paper, it would be a dramatic difference to his expectations than if you asked the subject to photograph him. Here, his expectations of the photos are simply undefined, and this subtle difference weighs very strongly insofar as determining whether his privacy rights have been violated. For instance, he'd have an easier case to make if he could say to the judge, "I hired the guy to photograph me and my horses so I could have prints--imagine my surprise when they showed up in the paper." This is a stronger case than if he said, "These guys asked if they could take pictures of me, and a few weeks later, there I am in the paper." Here, the difference in the preconceived expectations carries weight as to whether the farmer's personal privacy has been violated.

Again, individual cass can be argued, but I illustrate the difference here because one scenario is a stronger case than the other. And when you factor in other instance-specific details, the pendulum has a tendency to swing in unexpected directions quite easily.

And finally...

You may recall that in the beginning of this article, I said there was a contract between the parties in each assignment. But I didn't say what was in those contracts so we could focus on understanding the concepts involved. Now that that's done, we can go back and revisit the contracts and see if the terms alter anything we've assumed.

First and foremost, if the contract is "work-for-hire", then the photos aren't even yours in the first place. You have to hand them over to whoever hired you, and you're done. You have no rights to or legal access to those photos (unless, of course, the client chooses to let you have them). A work-for-hire contract has to actually use that phrase.

Assuming it is not a work-for-hire contract, the client's own use of the photos are limited to personal use only. I had mentioned in several of the examples that the clients were going to publish the photos in some form. Technically, because you own the copyright to the photos, the client cannot publish them at all without permission from you. Assuming that it was the client's intention to publish them, we can assume that the contract specifically stipulated the right to use the pictures for the stated uses. However, just because the client can use the pictures in the manner stated, it does not affect your use of the photos insofar as the model release requirements are concerned. That is, if you performed a portrait session with a client who had you sign a contract saying that he's going to provide these photos to a stock agency who will license them, he has the right to provide them to the agency because it was written into the contract. You don't, unless you have a model release from him. Otherwise, you've violated his privacy rights because he came to you to get his pictures taken.

And that brings us to the last point: while it's important to understand all these issues raised here, the best business decision you can make whenever any signed contracts are involved, is to include language that outlines the terms of a model release. That would make the entire discussion moot. And provided that the release language is broad, you could even license all the pictures discussed here for commercial uses. The one exception would be the restaurant scenario because other people (other than the owner) may be involved. The owner can't sign on behalf of clients, so those people would have to be dealt with individually.